Semprebon v. Semprebon

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                                No. 89-012


Judith C. Semprebon                          Supreme Court

                                             On Appeal from
     v.                                      Orange Superior Court

Thomas Semprebon                             February Term, 1991



Linda Levitt, J.

Oreste V. Valsangiacomo, Jr., and Gary D. McQuesten of Valsangiacomo,
  Detora, McQuesten, Rose & Grearson, Barre, for plaintiff-appellant

Richard E. Davis and Edwin W. Free, Jr., of Richard E. Davis Associates,
  Inc., Barre, for defendant-appellee


PRESENT:  Allen, C.J., Gibson, Dooley, Morse and Johnson, JJ.


     DOOLEY, J.   Plaintiff Judith Semprebon filed this divorce action
against defendant Thomas Semprebon.  Plaintiff appeals from the final order,
claiming that:  (1) the trial court's findings with respect to certain
marital property were clearly erroneous; (2) the court failed to indicate
the weight given to each statutory factor in fashioning the property award;
and (3) the court improperly failed to award spousal maintenance.  Defendant
Thomas Semprebon cross appeals, also claiming error in the valuation of
certain property.  We affirm the property settlement but reverse and remand
for consideration of plaintiff's request for maintenance.  The parties were
married on September 29, 1973.  They had three children together, whose
present ages are 13, 15, and 17.  Plaintiff also has another child from a
previous marriage.  Beginning in the early 1980s, the parties apparently
began having difficulties in their relationship.  Plaintiff complained that
defendant did not communicate with or pay attention to her or show affection
toward her, spending most of his time at work rather than with her or their
family.  Defendant believed that such "love and attention problems" were, to
some degree, "a normal part" of any marriage.
     In October of 1986, plaintiff engaged in an extramarital affair, and
the parties separated in December of 1986.  Following their separation,
defendant paid for plaintiff's purchase of a condominium, and gave her $8000
to furnish it.  Defendant remained in the family home with the children.
     Defendant has a college degree and, prior to the marriage, had worked
out of state.  In 1972, he returned to Vermont to join his family's
business, Calmont Beverages Company, Inc., in Barre.  Over the years,
through the efforts of defendant, defendant's brother, and their father,
Calmont has grown and proven to be a very profitable enterprise.  In 1986,
for example, the business had gross sales of nearly four million dollars.
At the time of the final divorce hearing, defendant and his brother each
owned a 37% share of the corporation and the senior Semprebon held the
remaining shares.  A shareholders' agreement provided that, at the death of
their father, the brothers would purchase the remaining shares from his
estate for a fixed price of $100,000.  The corporation paid the premiums
for a life insurance policy on the senior Semprebon, the proceeds of which
will cover the purchase price of these shares.
     Defendant's adjusted gross income for 1987 was $165,268.  Because
Calmont is a Subchapter S corporation, defendant is taxed on some
undistributed corporate earnings that he did not actually receive.  The
trial court could not determine the extent to which the $165,268 was
actually received by defendant.
     Plaintiff was thirty-five years old at the time of the divorce and had
a high school degree and limited career skills.  During the marriage, she
worked primarily at home and cared for the children.  At the time of the
final divorce hearing, plaintiff worked in a furniture store as a
salesperson and interior designer.  She earned $175 per week plus a five
percent sales commission.  From May 16, 1988, to September 2, 1988, her
earnings totaled $4454.
     After the final divorce hearing, the trial court awarded legal and
physical rights and responsibilities for the parties' three children to
defendant, pursuant to an agreement of the parties.  Because of plaintiff's
low income, the court ordered her to pay only a nominal amount of monthly
child support.  The court ordered defendant, however, to pay plaintiff a
"maintenance supplement" of $200 per month "to help equalize plaintiff's and
defendant's living situations so that the children can enjoy the same
activities with plaintiff during their visitation with her as they do at
home with defendant."
     The court valued the major property as follows.  It found plaintiff's
condominium to be worth $115,000 and to be free of any mortgage.  It further
found that plaintiff had received $20,000 from the parties' joint bank
account to purchase an automobile and had cashed her $12,000 IRA account.
It found that defendant possessed the following assets:  (1) a house valued
at $195,000 and encumbered by a $30,000 mortgage, (2) the 37% share in
Calmont Beverage valued at $392,000 plus $113,000 for Calmont's real estate
minus $66,000 in debt owed by defendant to Calmont, and (3) a pension valued
at $14,000.  It also found that defendant owed his father about $32,000,
incurred in part to finance plaintiff's condominium.  The court made the
following property settlement:
           (7)  Defendant is awarded all his interest in Calmont
         Beverage, the home in Williamstown, his pension,
         household furnishings and other personal property
         presently in his possession . . . .
           (8)  Defendant shall be solely responsible for the
         mortgage on the home and debts due his father and
         Calmont Beverage.
           (9)  Plaintiff is awarded the condominium, cash,
         household furnishings and other personal property
         presently in her possession . . . .
           (10)  In addition to the property awarded plaintiff
         in # 9, plaintiff is awarded cash in lieu of property in
         the amount of $135,000.  As of June 1, 1989, defendant
         shall pay plaintiff $25,000 each year for five
         consecutive years and shall pay plaintiff $10,000 on
         June 1 of the sixth year.

In reaching its settlement, the court stated:  "In light of the factors
listed in 15 V.S.A. { 751, and the fact that the divorce was more
plaintiffs' fault than defendant's fault, the court will award more than
half of the property to defendant."
     The trial court denied both parties' motions to reconsider the order.
This appeal and cross appeal followed.
     Plaintiff makes a series of claims with respect to the findings
supporting the property award.  Her most earnest attack is on the court's
valuation of defendant's interest in Calmont Beverage Company, which she
argues is unsupported by the evidence.  Significantly, plaintiff's own
expert witness, James Powers, offered the most detailed testimony on the
value of defendant's share of Calmont.  Powers, a certified public
accountant, testified that there are several acceptable methods for valuing
a closely held business.  He stated, "Obviously, there is no set number that
really represents the specific value of Calmont, but the answer comes back
in a range."  Accordingly, he described three methods he had used to arrive
at a low, a medium, and a high figure for the value of defendant's share.
The first method, the "equity approach," yielded a value of $275,000 for
defendant's share.  The second, the "income approach," provided a value of
$392,000.  The third, an "entity approach," resulted in a value of
approximately $650,000.  Defendant's expert witness, John Salvador, an
accountant who had worked for Calmont, offered a single estimate of the
value of defendant's share in the business: $277,000.  The trial court made
the following finding:
         Defendant's 37% share of Calmont Beverage is valued at
         $392,000 based on the income approach of estimating
         value.  Although differing estimates of value were
         presented at trial, the court finds this estimate to be
         the most reasonable one under all of the circumstances
         and represents the value of defendant's minority
         interest.

    We will not disturb the court's findings of fact unless, viewing the
evidence in the light most favorable to the prevailing party and excluding
the effect of modifying evidence, a finding is clearly erroneous.  McCrea
v. McCrea, 150 Vt. 204, 206, 552 A.2d 392, 393 (1988).  The $392,000
valuation was clearly within the range of the evidence presented, and the
court was within its discretion to arrive at this figure.  We likewise
reject defendant's claim that the court placed too high a value on his
share in the business.  See Wood v. Wood, 143 Vt. 113, 119, 465 A.2d 250,
253 (1983) (absent evidence of outside appraisal figures, "the court was
limited to the parties' valuations, and it was fully within its discretion
to choose defendant's estimates"); see also Klein v. Klein, 150 Vt. 466,
469, 555 A.2d 382, 384 (1988) (where testimony on value of real property
"was in some conflict," trial court's reliance on valuation provided by
plaintiff/owner was not clearly erroneous).
     As a second attack on the valuation of defendant's interest in his
business, plaintiff argues that the court failed to include almost $400,000
in cash which Calmont had on hand at the time it was valued.  The evidence
was that Calmont often kept large amounts of cash on hand, to be used to
purchase inventory and equipment and to meet cash flow needs when income
would not be received.  The court could conclude that this cash was
considered by the expert witnesses in valuing Calmont and did not need to be
considered separately.  There was no error in failing to add the cash to the
value of Calmont.
     The remainder of plaintiff's specific attacks on the property
distribution, and the findings that underlie it, relate primarily to the
court's failure to trace the expenditure of certain funds and determine the
source of certain assets.  We have considered carefully each of these
claims and conclude that the court made the findings essential to valuing
and distributing the assets, see Bendekgey v. Bendekgey, 154 Vt. 193, 200,
576 A.2d 433, 437, and those findings are not clearly erroneous.  See
Belandger v. Belandger, 148 Vt. 202, 206, 531 A.2d 912, 914 (1987).
     Plaintiff next argues that the trial court was required to specify the
weight given to each of the statutory factors contained in 15 V.S.A. { 751
and failed to do so.  Section 751, which governs the distribution of
property in a divorce, requires the court to "equitably divide and assign
the property" and sets out twelve factors that the court "may consider."
The trial court has broad discretion in considering these factors, and its
decision will be upheld unless its discretion was abused, withheld, or
exercised on grounds clearly untenable.  Ward v. Ward, ___ Vt. ___, ___, 583 A.2d 577, 583 (1990); see also Kingsbury v. Kingsbury, 147 Vt. 625, 626, 523 A.2d 1246, 1247 (1987) (weight to be assigned each { 751 factor lies within
trial court's discretion).
     Plaintiff maintains that { 751 requires the court to make specific
findings on each statutory factor.  We have rejected a similar argument
with respect to child custody where the statute makes consideration of
itemized factors mandatory.  See Harris v. Harris, 149 Vt. 410, 414, 546 A.2d 208, ___ (1988) (sufficient that findings show that court has taken
statutory factors into consideration).  It makes no sense to impose such a
requirement where, as here, use of any particular statutory factor is
optional within the discretion of the trial court.  Thus, we have required
only that the findings "provide a clear statement as to what was decided and
why."  Richard v. Richard, 146 Vt. 286, 287, 501 A.2d 1190, 1190 (1985).
The court's findings and conclusions in this case meet that standard and
evince sufficient consideration of the { 751 factors.  Although the final
distribution results in roughly a 65%-35% split in favor of defendant, we
cannot conclude that the settlement amounts to an abuse of discretion. See
Lalumiere v. Lalumiere, 149 Vt. 469, 471, 544 A.2d 1170, 1172 (1988)
(upholding 70%-30% property division).
     Plaintiff's final claim is that the court erred in failing to award
spousal maintenance.  Plaintiff made requests for maintenance in her
complaint, her request for findings, and her motion for reconsideration of
the final order.  Despite these requests, the trial court made no ruling on
plaintiff's requests for maintenance, although the court did order defendant
to pay plaintiff a maintenance supplement.  See 15 V.S.A. { 661.  We do not
accept defendant's argument that the maintenance supplement fully met
plaintiff's maintenance need or that plaintiff's infidelity constitutes a
bar to her receipt of maintenance.  See Naumann v. Kurz, 152 Vt. 355, 361,
566 A.2d 1342, 1345 (1989) (relative merits of the parties is not an issue
in determining maintenance award).  Nor can we conclude that the trial court
made a property award in lieu of maintenance.  See id. at 358, 566 A.2d  at
1344.
     The trial court's failure, without explanation, to address a request
for maintenance requires us to remand because we cannot determine "'what was
decided and why.'"  Klein, 150 Vt. at 472, 555 A.2d  at 386 (quoting Richard,
146 Vt. at 287, 501 A.2d at 1190).  In Klein, we went further and directed
the court to make an appropriate award of maintenance because we found that
the wife was entitled to it as a matter of law.  Id.  While this case has
some of the factors present in Klein, and the evidence is clearly
sufficient to allow the trial court to award maintenance, we decline to
direct an award of maintenance.  We prefer to let the trial court consider
the request for maintenance in the first instance in light of the statutory
factors in 15 V.S.A. { 752(b) and our recent decisions on maintenance,
including Klein, 150 Vt. at 473-77, 555 A.2d  at 386-89.  See also Johnson v.
Johnson, ___ Vt. ___, ___, 580 A.2d 503, 506 (1990); Bancroft v. Bancroft,
154 Vt. 442, 445-46, 578 A.2d 114, 116-17 (1990); Naumann, 152 Vt. at 359-
62, 566 A.2d  at 1344-46.
     Because we are remanding for the court to consider a maintenance award,
we will also reopen the property award because of the interrelationship of
these two parts of the financial order.  See Downs v. Downs, 154 Vt. 161,
168, 574 A.2d 156, 159 (1990).
     The divorce decree is vacated in part and remanded for a consideration
of a maintenance award and a reconsideration of the property award in light
of any maintenance award.  The decree in all other respects is affirmed.

                                        FOR THE COURT:




                                        Associate Justice